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Boldosser v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

June 10, 1996

JOHN BOLDOSSER Appellant
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          Submitted: April 23, 1996

          DECISION ON APPEAL

          MIKE MCCARTER JUDGE.

         Summary: 35 year old former construction worker filed occupational disease claim alleging that construction work aggravated his back condition. Relying on presumption of correctness of medical panel reports (§39-72-610(1), MCA (1993)), hearing officer ruled claimant did not prove work caused his condition. Claimant appealed to WCC.

         Held: Where record revealed panel physician did not properly apply ODA (reference was made to causation of condition by "injury" on a particular date), WCC reverses DOL decision and remands for designation of new panel and for a new hearing.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-610(1), MCA (1993). In deciding occupational disease case, DOL hearing officer relied on presumption of correctness of medical panel report, but record revealed that panel physician likely did not properly apply ODA where reference was made to causation of condition by "injury" on a particular date. Decision reversed by WCA and remanded for designation of new panel and for a new hearing.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-612(2), MCA (1993). Statute permits WCA to reverse DOL hearing officer where decision below was "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record."
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-706(1), MCA (1993). Aggravations of preexisting conditions or diseases are compensable under the ODA.
Judicial Review: Standard of Review: Clearly Erroneous. Section 39-72-612(2), MCA (1993) permits WCA to reverse DOL hearing officer where decision below was "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record."
Occupational Disease: Medical Panels. In deciding occupational disease case, DOL hearing officer relied on presumption of correctness of medical panel report, but record revealed that panel physician likely did not properly apply ODA where reference was made to causation of condition by "injury" on a particular date. Decision reversed by WCA and remanded for designation of new panel and for a new hearing.

         This is an appeal from an Order of the Department of Labor and Industry denying an occupational disease claim.

         The appellant/claimant in this matter is John Boldosser (claimant). He suffers from a bad back and filed a claim for occupational disease benefits based on his employment as a rough carpenter during 1991 to 1993. A hearing officer from the Department of Labor and Industry (DLI) found that he had not carried his burden of proof to rebut a medical panel report finding that he does not suffer from an occupational disease. In his appeal to this Court, the claimant contends that the hearing officer's finding is clearly erroneous in view of reliable, probative and substantial evidence on the whole record. This Court agrees.

         Record on Appeal

         The record on appeal consists of a transcript of the hearing, a copy of the deposition of Dr. Michael Lahey, and nine exhibits.

         Background Facts

         The claimant is 35 years old. He has primarily worked in heavy labor in the construction business. He also worked for a dairy in Pennsylvania for five years. Currently he is self-employed doing painting, pipe fitting, landscaping, electrical wiring, and some plumbing.

         In 1991 claimant went to work for Larry Karper, who operates a construction company. Karper is a sole proprietor but carried workers' compensation insurance on his employees. At the time the alleged occupational disease arose, Karper was insured by the State Compensation Insurance Fund.

         Karper's construction firm specializes in framing buildings. Framing includes the construction of walls, floors, and roofs. It also includes the installation of siding. It is heavy work requiring workers to lift walls into place, to lift, pull, and carry heavy sheeting, and lift large beams and trusses.

         Sometime in December of 1992, claimant fell approximately eight feet from a ladder. He did not experience any immediate discomfort as a result of his fall and completed his shift. However, he testified that he went to a physical therapist a "couple days -- within a week, I think, after that . . . ." (Tr. at 30.) He explained that he sought physical therapy "[c]ause, I was having a lot of back pain . . . I was having some serious back pain, so I went to see him [the physical therapist]." (Id. at 44, 45.) Claimant further testified that the physical therapist told him that he "would want to look into other types of employment, that my employment was probably aggravating my condition." (Id. at 28.)

         Claimant made only one visit to the physical therapist. He explained that he could not afford continued treatment:

BOLDOSSER: . . . And as far as following up on anything, he explained to me that it would take a bunch of expensive tests and x-rays and time off work to try to correct the situation, so that's basically why I didn't, I didn't have the time or the finances at that time to follow up on it.

(Tr. at 29.) The exhibits presented at hearing do not include any physical therapy notes so further information concerning the physical therapy is unavailable.

         Following the ladder incident the claimant continued to work until October 1993. During that time he missed only a half day of work, and that was on the day of his physical therapy appointment. (Id. at 30.) In October claimant quit his job.

         Claimant testified that he continued to have back pain while working in 1993, and that his pain increased with time:

TOOLE: In the last, in the last two months that you were there [working for Karper], was the back pain worse than it had been?
BOLDOSSER: Yeah.
TOOLE: The period just before that, say in the spring and summer of '93, how was the back pain then? Gradual thing or was it up and down? What was it?
BOLDOSSER: I would say it was a pretty gradual thing. It just seemed to be getting worse, and the more I worked, the more it aggravated it.

(Tr. at 50.)

         Larry Karper testified that he noticed claimant's work "slacking" over the last two months of his employment. (Tr. at 20.) When his attention was drawn to a statement in medical notes indicating that claimant had quit his job due to a disagreement with his supervisor, Karper further testified:

KARPER: Well like I, I got a little impatient with him not being able to perform some of the duties and maybe I just didn't really understand that a lot of it was coming from physical problems.
. . . .
WITTE: Umhuh. What do you mean when you say it would be fairly obvious what he couldn't do?
KARPER: Well bending and stuff, you know, wincing and just kind of standing and holds his back, and stuff like that, you know. He wouldn't come right out and say. He would just try to go ahead and do the work but then he'd get, well it seemed like he kind of act lazy which wasn't really wasn't the case because I know John was, is not a lazy person but you could tell he was suffering.
(Tr. at 20-21.) Karper did not feel that claimant's slackening was attributable to his December 1992 fall:
TOOLE: Your feeling was that the ladder incident was not really related to the things that you noticed in the last two or three months of his work?
KARPER: No, I never connected those, those ...

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